Delhi District Court
State vs . Rohtash & Ors. on 29 January, 2015
FIR NO. 137/02 PS. OIA U/s. 407 IPC. State Vs. Rohtash & Ors. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI. FIR NO. 137/02 PS. OIA U/s. 407 IPC. State Vs. Rohtash & Ors. JUDGMENT
A. SL. NO. OF THE CASE : 690/2/02
B. DATE OF INSTITUTION : 10.05.2002
C. DATE OF OFFENCE : between 18.01.2002 to 21.01.2002
D. NAME OF THE : Sh. Shyam Sunder Soni
COMPLAINANT S/o late Sh. H.B.Soni
E. NAME OF THE : (1).Rohtash Singh
ACCUSED S/o Sh. Sukhbir Singh (PO vide
order dated 21.11.2011)
(2).Praveen Kumar
S/o Sh. Kishan Chand
(3) Hardev Singh
S/o Sh. Bhajan Singh
(4) Mohd. Islam @ Pappu
S/o Sh. Babu Khan
F. OFFENCE
COMPLAINED OF : U/s 407/414/120B IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Accused Praveen Kumar, Hardev
Singh and Mohd. Islam @ Pappu
1/10
FIR NO. 137/02
PS. OIA
U/s. 407 IPC.
State Vs. Rohtash & Ors.
are acquitted.
I. DATE OF SUCH ORDER: 29.01.2015
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on 12.03.2002, Sh. Shyam Sunder Soni gave a written complaint, wherein he had asserted that he is running his own business of transport by the name and style of M/s Shubham Container Service at ICD, Tuglakabad. He had alleged that on 18.01.2002, his trailor bearing no. HR38E5627 was loaded at M/s Gas Authority of India Ltd. (GAIL), DistrictAuriya, UP with two containers bearing numbers SCZU7660939 and INBU3064435 which contained total 17 metric tons (680 sacs) each of plastic granules for their transportation to ICD, Tuglakabad. He had alleged that he had received the contract of said transportation through M/s Kataria Carriers. Accused Rohtash Singh was driver on the said trailor and he alongwith the said trailor started for ICD, TKD on 18.01.2002. He alongwith the said trailor reached ICD, TKD on 21.01.2002 and thereafter, the said containers loaded with said goods were sealed and they were sent to their foreign destination. Later, complainant through M/s Kataria Carriers came to know that total 24 metric ton of deficient plastic granules reached its foreign destination. The complainant had alleged that his driver Rohtash Singh criminally misappropriated the said deficient plastic granule and thereby committed criminal breach of trust. On the basis of the said complaint, the present FIR under Section 407 IPC was lodged.
2. During investigation, on 13.03.2002, accused Rohtash Singh was arrested and he disclosed the commission of the present 2/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
offence in connivance with accused Hardev Singh and Mohd. Islam @ Pappu. He had disclosed that they loaded the misappropriated plastic granules in a tempo and took it to a godown in Faridabad. He had further disclosed that accused Hardev and Mohd. Islam gave Rs. 1,20,000/ to him as a consideration for the misappropriated amount. He had further disclosed that he purchased a mobile phone, Samsung colour TV of 20 inch and one vehicle/van bearing registration no. DDA9157 out of the said sale proceeds. The said articles were recovered at the instance of the accused Rohtash. Accused Rohtash took the police officers to the godown in Faridabad, where the stolen goods were kept. However, the accused persons namely Hardev and Mohd. Islam could not be arrested. On 15.03.2002, the IO obtained copy of the lease deed of the said godown at Faridabad, Haryana which was used for the storage of the stolen property. As per the said lease deed dated 27.12.2001, the same was rented out to the accused Hardev Singh. On conclusion of the investigation, chargesheet under section 407 IPC against the accused Rohtash was filed in the court.
3. Subsequently, accused Hardev Singh was arrested on 14.11.2002 and he disclosed about the commission of the present offence. He alongwith accused Rohtash and Islam @ Pappu sold the stolen property to a person namely Parveen. He further disclosed that out of total sale proceeds, he gave Rs. 1,20,000/ to the accused Rohtash and distributed remaining amount of Rs. 1,85,000/ between himself and Islam @ Pappu. Thereafter, on 02.01.2003, supplementary challan against the accused Hardev Singh was filed in the court and it was annexed with the main challan against the accused Rohtash.
4. Thereafter, on 17.04.2003, accused Parveen was arrested and on 04.05.2003, accused Mohd. Islam @ Paapu was arrested. Both 3/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
of them gave respective disclosure statements and confessed to the police about the commission of the present offence. However, nothing was recovered from their possession. Thereafter, on 30.05.2003, supplementary challan in respect of the said two accused persons was filed in the court and it was also annexed with the present main file.
5. In compliance of Section 207 Cr. P. C., the copy of the challan and the documents annexed therewith were supplied to all the four accused persons. Prima facie charge U/s 407/120B IPC was made out against the accused persons namely Rohtash Singh and Hardev Singh. Accordingly, on 09.10.2002 and on 20.01.2003, respectively the charges against them were framed. Prima facie charge U/s 414 IPC and under section 411 IPC were made out against the accused Parveen Nandwani and Islam @ Pappu. Accordingly, charges against them were framed on 25.11.2003 and 26.04.2004 respectively. All the four accused persons pleaded not guilty and claimed trial to their respective charges. Thereafter, the case proceeded for prosecution evidence.
6. During prosecution evidence, accused Rohtash Singh has failed to appear in the court and after adopting due process of law, he was declared a proclaimed offender on 21.11.2011.
7. In order to substantiate its case, the prosecution examined ten witnesses.
8. Sh. Manish Kataria (PW1) has testified that he was the partner of the transport company namely M/s Kataria Carriers. He has further testified that they had contracted with GAIL for ferrying their polymer in bags from Auriya, UP to ICD, TKD. Empty containers used to be sent from ICD TKD to Auriya for supplying of export material. He has further testified that he had hired a trailer no. HR38E5627 belonging to Shubham Containers Service, TKD, Delhi for transporting goods of 4/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
GAIL in January, 2002. The trailor alongwith two specified containers went to GAIL which were loaded and sealed with 17 tons of polymers each. They delivered the said polymers at ICD in intact conditions. They were shipped to their destination in China. The buyer at the destination on opening the container found shortage of the polymers from the said containers. He has further testified that the buyer made a complaint in that regard to GAIL who in turn informed them. They immediately contacted M/s Shubham Containers, who made a complaint to the police. The driver of the said trailer namely Rohtash was arrested, who disclosed about the sale of the stolen property to the accused Hardv and Pappu. He has testified that the accused took them to a godown in Faridabad.. where he reported to have unloaded the entire material. He He has testified that the stolen property could not be recovered in his presence. None of the accused persons namely Hardev, Islam @ Pappu and Parveen were arrested in his presence and therefore, he did not identify either of the accused persons.
9. Complainant Sh. Shyam Sunder Soni (PW2) has proved his complaint dated 12.03.2002 as Ex. PW2/A. He has deposed in consistence with his said complaint and he has testified that his driver/accused Rohtash has committed criminal breach of trust by stealing 24 metric tonnes of plastic granules from the two containers that were entrusted to him for their transportation from GAIL to ICD, TKD. The said witness had not himself noticed the said theft. The said fact was conveyed to him by PW1 Sh. Manish Kataria. It is pertinent to mention here that even PW1 Sh. Manish Kataria is not a direct witness of theft and he also did not notice any shortage in the goods supplied to China. PW1 is also a hearsay witness, who had received the knowledge of theft from an unidentified buyer at China.
5/10 FIR NO. 137/02PS. OIA U/s. 407 IPC.
10. ASI Jai Praksh (PW3), has deposed that on 19.11.2004, he was posted as duty officer and he registered the present FIR. He has proved its copy as Ex. PW3/A and the endorsement as Ex. PW3/B.
11. Ct. Ajmer Singh is also inadvertently numbered as PW3. To avoid confusion and for convenience, he is renumbered as PW3A. He has testified that on 14.11.2002, on receipt of a secret information regarding thief, he alongwith HC Samar Pal and Ct. Shamsher Singh reached at Kachi Parking, Railway Colony, Container Depot and apprehended the accused Hardev Singh at the instance of secret informer. He was having a bag on his right shoulder which was found containing iron blade, nuts and sumbha. The accused was also arrested vide arrest memo Ex. PW3/B. He has correctly identified the accused Hardev Singh and the case property i.e. iron blade, nuts and shumbha. The same are collectively exhibited as Ex. P1 (colly). It is relevant to mention here that neither of the said case property is the stolen property of this case.
12. Ct. Brijesh Kumar (PW4) has deposed regarding the arrest of accused Rohtash on 13.03.2002 and recovery of TV and maruti van from his house, which were allegedly purchased by him through the sale proceeds of the stolen property.
13. Ct. Shamsher (PW5) has deposed on the similar lines as that of PW3A Ct. Ajmer and therefore, his testimony is not reproduced herein for the sake of brevity and to avoid repetition.
14. SI K.C.Kaushik (PW6) and Ct. Ashok Kumar (PW7) have deposed regarding the arrest of accused Pappu @ Islam. They have proved the pointing out memo of the accused Pappu @ Islam as Ex. PW6/B, wherein he had pointed out towards the godown at Faridabad, where he had stored/kept the stolen goods.
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15. Sh. Manoj Kumar (PW8) has deposed that he is the registered owner of maruti van bearing registration no. DDA9157 and he had sold the said vehicle to accused Rohtash for sale consideration of Rs. 55,000/.
16. ASI Sumer Pal (PW9) has deposed on the similar lines as that of PW4 Ct. Brijesh Kumar and PW6 SI K.C.Kaushik. Therefore, his said testimony is not repeated herein for the sake of brevity. He has also testified that he arrested the accused Hardev, Islam @ Pappu and Praveen Nandwani. He has further deposed that nothing was recovered from the possession of either of the accused persons. Thereafter, PE was closed.
17. Statements of the accused persons namely Mohd. Islam, Hardev Singh and Praveen Kumar U/s 313/281 Cr.P.C. were separately recorded. All the incriminating evidence against them were put to them for seeking their respective explanations. In the said statements, they have stated that they are innocent and they have been falsely implicated in the present case. They chose not to lead evidence in defence. Therefore, the case was listed for final arguments.
18. I have heard Ld. APP for the State and Ld. Counsel for all the accused persons. I have carefully perused the case file.
19. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
20. In the instant case, the accused persons namely Mohd. Islam and Praveen are charged for the offence of assisting in 7/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
concealment of stolen property (under section 414 IPC) and accused Hardev Singh has been charged for the offence of criminal breach of trust by a carrier and criminal conspiracy (under section 407/120B IPC)
21. In the instant case, the prosecution has alleged that on 18.01.2002, accused Rohtash, being the driver of Shubham Container Services, ICD, Delhi was entrusted with 17 metric tons each of plastic granules loaded in two containers for their transportation on a truck/trailor bearing registration no. HR38E5627 from GAIL, Auriya, UP to ICD, Tuglakabad. On 21.01.2002, he reached ICD, Tuglakabad with the said trailor and two containers. The said contract for transportation of goods was assigned to M/s Shubham Containers by M/s Kataria Carriers. Thereafter, the said containers were sealed and they were sent to their foreign destination at China. It is pertinent to mention here that the shortage/misappropriation of goods were not noticed at ICD, Tuglakabad. Subsequently, i.e. after passage of nearly two months, M/s Kataria Carriers informed M/s Shubham Containers that they have received an information from their final destination at China that 24 metric tons out of total 34 metric tons of plastic granules was found short, when the said goods reached China. Accordingly, on 12.03.2002, the present complaint was filed by Sh. Shyam Sunder Soni, M/s Shubham Container Service.
22. The theft/criminal breach of trust was allegedly noticed by an unknown person in China and that too after passage of nearly two months of the entrustment of the goods and their delivery in accordance with the mode in which the said trust was directed to be discharged. The entrusted goods were admittedly delivered by the accused Rohtash on 21.01.2002 at ICD, Tuglakabad (though it is alleged that part of the entrusted goods were misappropriated by him) and further, no shortage 8/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
or misappropriation of goods was noticed by the complainant at the time of their delivery to ICD, Tuglakabad. Thereafter, before it reached its final destination at China, it must have passed through several hands and therefore, it cannot be held with certainty whether the missing/short goods were misappropriated by the accused Rohtash before he delivered it at ICD, Tuglakabad or it was subsequently misappropriated during its transit to China. Moreover, the identity of the person, who allegedly noticed the shortage of goods has not been revealed. PW1 Sh. Manish Kataria and PW2 Sh. Shyam Sunder Soni are derivative/hearsay witnesses, who have received the information regarding misappropriation of goods from an unidentified and undisclosed person. The hearsay evidence is inadmissible in evidence all the more when even the source of the information is not revealed. Thus, neither there is any admissible incriminating evidence that criminal breach of trust was ever committed nor there is any evidence to suggest that the same, if any, was committed by either of the accused persons.
23. Furthermore, it is an admitted fact that neither the accused Hardev Singh was the employee of M/s Shubham Containers Service nor any goods was entrusted to him. Besides, no admissible incriminating evidence has come on record to show that there was a criminal conspiracy between the accused persons for the commission of the offence of criminal breach of trust. The accused persons namely Hardev Singh, Islam @ Pappu and Parveen were arrested on the basis of the disclosure statements of the accused Rohtash made to the police. However, nothing incriminating (neither stolen property nor any instrument established to be used for the commission of the offence) was recovered from either of the accused persons. The disclosure 9/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
statement of the accused made to the police or of the coaccused, in absence of discovery of any fact pursuant to the said disclosure, is inadmissible in evidence as same is barred under section 25/26 Evidence Act, 1872. Thus, the prosecution case suffers from material and fatal infirmities and therefore, all the three accused persons namely Mohd. Islam, Praveen Kumar and Hardev Singh are entitled to benefit of doubt.
24. In view of the above discussion, the prosecution has miserably failed to lead convincing and clinching evidence against either of the accused persons to bring them within the four corners of the offences punishable U/s 407/414/120B IPC. Accordingly, the accused persons namely Mohd. Islam, Praveen Kumar and Hardev Singh are acquitted for the abovesaid offences. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Rohtash is arrested and produced before the court for facing trial.
Announced in the open court today i.e. on 29.01.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE SAKET/DELHI 10/10 FIR NO. 137/02 PS. OIA U/s. 407 IPC.
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, SAKET COURTS, DELHI.
FIR NO. 137/02PS. OIA U/s. 407/414/120B IPC State Vs. Rohtash & Ors.
29.01.2015 Present Sh. Narender Yadav, Ld. APP for the State.
Accused Mohd. Islam, Praveen Kumar and Hardev Singh on bail with their counsel.
Accused Rohtash is PO vide order dated 21.11.2011.
Statements of the accused persons namely Mohd. Islam, Hardev Singh and Praveen Kumar U/s 313/281 Cr.P.C. are separately recorded. Final arguments are heard. Case file is perused.
Vide my separate judgment announced in the open court today, the accused persons namely Mohd. Islam, Praveen Kumar and Hardev Singh are acquitted for the offences punishable U/s 407/414/120B IPC. They are directed to furnish fresh personal bonds in a sum of Rs. 10,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They have submitted that their respective previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for next six months.
File be consigned to Record Room with the directions to record keeper to revive the same as and when the accused Rohtash is arrested and produced before the court for facing trial.
(Dheeraj Mor) MM02/SE/SC/ND 29.01.2015 11/10